177 Mass. 501 | Mass. | 1901
These are three petitions under the St. of 1893, c. 340, to quiet title to a parcel of land in Lynn.” The first ques
If we assume that the question is open to the respondents, and need not be taken by demurrer, we are of opinion that the ruling was right. It is true that the statute applies only to a record title clouded by an adverse claim, or by the possibility of such claim ; Arnold v. Reed, 162 Mass. 438; and that the petition must be brought by certain persons; yet the statute goes on to describe what the petitioner must set forth in his petition, namely, his interest, a description of the premises, the claims and the possible adverse claimants, so far as known to him. The statute therefore states the jurisdictional facts, and if these are set forth it is enough. It is true that in Arnold v. Reed, ubi supra, it was said by Chief Justice Field: “ The question in this case is whether the petitioners allege and show a record title to the real property described in the petition ” ; but the decision went upon the ground that the petitioner did not have a record title, which was the only question raised by the report, which we have examined.
The next question is whether the petitioner showed that he had a record title. The bill of exceptions shows a record title in the petitioner. " It is true that it also shows a record title in the respondents. But if the petitioner has, in addition to a record title, possession, the question whether he has a better
The remaining question is whether the petitioner showed that he was in possession of the land claiming an estate of freehold therein at the time of the date of the petition, namely, December 18, 1899. The exceptions state that the petitioner testified that the premises described in the deed first herein mentioned, (which we understand tó mean the deed of 1871,) were formerly enclosed by a fence or stone wall, and that in May, 1899, he enclosed the premises conveyed by Mahon to him by the deed of 1873, with a wire fence except on the southerly side, on which side was the line of the stone wall; that part of said wall had been removed for building purposes, and the person who removed it agreed to replace it; that he did not know of his own knowledge whether the wire fence, built in 1899, was standing at the time the petition was brought; that he had paid the taxes on the land continuously since the deed to him of 1873; that in 1887 he caused a survey of the premises to be made and posts to be set at the corners thereof; that the premises were uncultivated, and largely covered with bushes, of which he caused the premises to be cleared in 1889.
The court found that all the time from April 24,1873, to the time of the trial, the petitioner had been in uninterrupted, exclusive possession of the land described in the deed dated April 23, 1873, claiming title thereto under this deed; and that the prayer of the petition ought to be granted.
The respondents apparently put in no evidence and the case rested on the evidence of the petitioner.
The evidence shows acts of dominion exercised upon the land, beginning in 1887, and continuing at intervals down to a few months of the date of the petition. And this evidence, in the absence of proof to the contrary, would warrant the finding of the judge who heard the cases.
The respondents rely upon the case of Whitman v. Shaw, 166 Mass. 451, 461, to the point that the fact that the petitioner paid taxes upon the land is not evidence* of possession. The point decided in that case was that taking a deed of land from a person who had no title, and doing nothing more than to pay
The respondents next contend that placing a wire fence on three sides of the premises is not evidence that the petitioner was in possession, and cite Coburn v. Hollis, 3 Met. 125. That case decided that the making of a fence on wild land by felling trees and lapping them together did not amount to a disseisin of the true owner. But the land in question in the case before us was not wild land, though it was not cultivated; and the land was enclosed on three sides by a wire fence, and on the other side by a stone wall. The condition of things was very different from that in the case cited.
As the land was not unenclosed wild land, the case does not fall within Parker v. Parker, 1 Allen, 245.
Exceptions overruled.